The Gender Recognition Act 2004 Guidance for Police Officers and ...

The Gender RecognitionAct 2004Guidance for PoliceOfficers and StaffJuly 2005

Written by Sgt Julie Challoner, Devon & Cornwall Constabulary.For futher information e-mail julie.challoner@devonandcornwall.pnn.police.ukThe Gender Recognition Act 2004 - Guidance for Police Officers and Staff

CONTENTSExecutive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 1Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 1Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 1Dispelling the Myths . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 3Gender Recognition Act 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 4PNC and Gender Reassigned Marker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 7Change of Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 8Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 9Searching . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 10Strip and Intimate Searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 10Employment of Transgender Staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 12Annex 1 Application Flowchart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 15Annex 2 Sources of Advice and Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 16Annex 3 Experiences with police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 19The Gender Recognition Act 2004 - Guidance for Police Officers and Staff

In July 2003 the Government published a draft bill which allows transgender people, who have taken decisive stepsto live fully and permanently in their acquired gender, to gain legal recognition in that gender. Under this bill, theUK will deliver its obligation to give transgender people their rights under the European Convention on HumanRights. This bill became the Gender Recognition Act in October 2004. This Act has implications for the policeservice in terms of the employment of, and services delivery to, transgender people in general terms.From October 2005 (April 2005 for some people) persons will be able to apply for a gender recognition certificate(GRC), which, in turn, will allow UK citizens to have a new birth certificate that shows their acquired gender.Certificates will be issued from October 2005. For detailed information on the three different types of application- fast track, overseas and standard, see the Gender Recognition panel website at www.grp.gov.ukThe GRA 2004 not only outlines new legislation for transgender people who wish to acquire recognition in theirpreferred gender, but also introduces a new offence of disclosure that all police officers and staff must be aware of.DISPELLING THE MYTHSCross-dressers/transvestites through to post-operative transgender covers a huge spectrum of individuals, each ofwhom have their own individual needs. Not every male or female that dresses as the opposite gender(transvestite) do so because they wish to permanently be defined in the opposite gender (e.g. transgender). Somedo it as a fetish or for sexual gratification, some are simply driven by an unexplained urge to dress as a womanand are considered to be transvestites, but will have no desire to change their gender. Transvestites can be happilymarried individuals who have no desire to remain in the opposite gender but have a personal need to cross-dress,whether it be for comfort or just to express their feelings.The majority of known transvestites and cross-dressers are heterosexual men and they are often married withfamilies. Although some individuals may be bisexual they rarely define themselves as gay. This may explain whythe gay community do not always readily relate to transvestites and cross-dressers, and why police officers and staffmust never assume anything about a trans person and their sexual orientation.What is transgenderism? There is no universal definition that can be quoted but the following gives a goodguideline and is the most frequently used:A generic term commonly used to cover those people who do not conform to the existing social andcultural classifications of men and women. It embraces transsexual people, intersex people and thosewho are gender dysphoric.It follows that there are individuals that are not comfortable with their birth gender and will dress and live in theirpreferred gender. Some of them will undertake counselling and will have surgery to alter their gender. Some maynot be able to have the surgery for health reasons but will live in their preferred gender. It may take years of crossdressingbefore they get to this stage and along the way they may have become estranged from family and friendswho have not been able to accept the change. This can lead to acute stress in the individual who has yet tounderstand or declare their status.Whatever their needs each and everyone must be treated with dignity and respect. Understanding some of thebackground should assist the service in our contact with individuals with this background, allowing a betterrelationship and co-operation to develop. We need to aim to prevent the following incident from happeningagain.‘Rang to report an incident and gave my name as..... (female name), the operator insisted in askingme again what it was and constantly referred to me as he'The Gender Recognition Act 2004 - Guidance for Police Officers and Staff2

GLOSSARYIt is difficult to give clear definitions that are universally agreed, but so as to assist with the reading of thisdocument the definitions below are generally accepted or are medically based. Whilst they are generally acceptedand are used throughout this document, they should not be used as 'labels' as this may be offensive to anindividual. This glossary is not intended for that purpose.ANDROGYNYRefers to those who are intermediate in gender.BISEXUALITYIs where sexual attraction is to either or both sexes. In general, people who define themselves as homosexual,intersex or bisexual are quite satisfied with their gender and body.CROSS-DRESSINGIs the desire to adopt the clothes, appearance and behaviour normally associated with the opposite gender. Forsome it is simple 'dressing up', while for others, known as Dual Role Cross-Dressers, it is a need to adopt theopposite role as fully as possible, on a temporary, or on a full-time basis. Sometimes such individuals are medicallyreferred to as ‘Transgenderist’. Do not assume that men or women who cross-dress are gay.'EN FEMME'The term preferred when a male is dressed as a female.GENDER ROLEIs expressed in terms of masculinity and femininity. It is how people perceive themselves and how they expectothers to behave. It is largely culturally determined.GENDER DYSPHORIAThe term Dysphoria describes the discomfort experienced when the innate gender identity is inconsistent with thevisible sex characteristics, e.g. genitalia, and gender role. This appears to be a biological condition where smallparts of the brain develop inconsistently with the visible sex characteristics. Unusual genetic and hormonalinfluences during the development of the foetus in the womb appear to be implicated in this atypicaldevelopment.GENDER IDENTITYA person's own psychological identification as male or female.GENDER REASSIGNMENTThe Sex Discrimination (Gender Reassignment) Regulations 1999 define this as 'a process that is undertaken undermedical supervision for the purpose of reassigning a person's sex by changing physiological or other characteristicsof sex, and includes any part of such a process'. You should try to avoid the term ‘sex change’ as it can beconsidered inappropriate.HERMAPHRODISM OR INTERSEXUALITYIs where the physiological sex is ambiguous or dual. The situation may, or may not, be accompanied by variousdegrees of Gender Dysphoria. The condition may be due to chromosomal complexes, such as Turner's orKlinefelter's Syndromes, congenital errors of metabolism such as androgen insensitivity syndrome andadrenogenital syndrome. There may also be effects from the hormone balance in the foetus or the placenta.HETEROSEXUALITYIs a situation where the sexual attraction is felt for people of the opposite sex.3 The Gender Recognition Act 2004 - Guidance for Police Officers and Staff

HOMOSEXUALITYIs a situation where the sexual attraction is felt for people of the same sex rather than the opposite sex,(gay/lesbian is the preferred term to be used).POST-OPERATIVE STAGEThis is when an individual has undergone surgery and is now in their preferred gender. Until the GRA 2004 theyhave not been able to apply for a new birth certificate. Unless they apply for, and are granted a GRC and birthcertificate (for UK nationals) they will still be legally classed according to their birth sex.PRESENTWhen a trans person is in the clothes of their preferred gender and wish to be treated as that gender they'present'.SEXThe physical and biological form of being male or female or both (hermaphrodite or intersexual) or neither(asexual).'TRANS'A generic term used by the transexual community.TRANSITIONAL PERIODWhen a trans person decides to fully live in their preferred gender. They must do so for two years to be able toapply for a gender recognition certificate. Normally during this time they will receive counselling, medication and,if they so wish, prepare for surgery (this can then also be known as the 'pre-operative stage' or the ‘real lifeexperience (RLE)).TRANSVESTISMIt is generally accepted that this refers to men/women who cross-dress with the intention of adopting theappearance, mannerisms and behaviour of women/men. Most transvestites are content with their gender andbiological sex and have no desire to permanently alter their body. This is not to say that some transvestites, dueto a change or alteration of their life, may not choose to alter their gender at some stage in their life. It is notnecessarily a fixed state and can change many times throughout a person’s life.TRANSSEXUALISM/TRANSGENDERTransgender appears to be the preferred term amongst trans persons as it removes the emphasis away fromsexuality and towards gender. It is an acute form of gender dysphoria where a person’s perception of their genderis opposite of their biological sex. Some evidence suggests that the condition is now being seen equally in menand women. The accepted ratio is approximately between three male to female (MTF) transsexual people to eachone female to male (FTM) but the gap is narrowing especially in the under 30 age group. It is a conditionindependent of sexual orientation and should not be confused with transvestism.GENDER RECOGNITION ACT 2004The following is a summary of the key sections within the GRA 2004.Applications for gender recognition certificate:Section 1 – Applications(1) A person of either gender who is aged at least 18 may make an application for a gender recognition certificateon the basis of -The Gender Recognition Act 2004 - Guidance for Police Officers and Staff4

(a) living in the other gender, or(b) having changed gender under the law of a country or territory outside the United Kingdom.(2) In this Act 'the acquired gender', in relation to a person by whom an application under Subsection (1) is or hasbeen made, means-(a) in the case of an application under paragraph (a) of that Subsection, the gender in which the person isliving, or(b) in the case of an application under paragraph (b) of that Subsection, the gender to which the person haschanged under the law of the country or territory concerned.(3) An application under Subsection (1) is to be determined by a Gender Recognition Panel.(4) Schedule 1 (Gender Recognition Panels) has effect.Section 2 - Determination of applications(1) In the case of an application under Section 1(1)(a), the Panel must grant the application if satisfied that theapplicant -(a) has or has had gender dysphoria,(b) has lived in the acquired gender throughout the period of two years ending with the date on which theapplication is made,(c) intends to continue to live in the acquired gender until death, and(d) complies with the requirements imposed by and under Section 3.NOTE:To clarify Section 1(1)(a), there will be applicants for a GRC that will not have had genderreassignment surgery and may never have the surgery, thereby retaining their original genitalia, butwill live and be legally recognised in their acquired gender.The applicant has to produce certain evidence as set out in the GRA 2004. If successful, a gender recognitioncertificate (GRC) will be issued to the applicant. A full GRC can only be issued to an unmarried applicant. If theapplicant is married an interim GRC may be issued until dissolvement or annulment of the marriage is granted. Inthat case a full certificate may then be issued.A guide to applying to the Gender Recognition Panel, as laid down in the Gender Recognition Act 2004, has beenproduced by the Department for Constitutional Affairs and is set out at Annex 1.Section 9 – General(1) Where a full gender recognition certificate is issued to aperson, the person's gender becomes for all purposesthe acquired gender (so that, if the acquired gender isthe male gender, the person's sex becomes that of aman and, if it is the female gender, the person's sexbecomes that of a woman).(2) Subsection (1) does not affect things done, or eventsoccurring before the certificate is issued; but it doesoperate for the interpretation of enactment’s passed,and instruments and other documents made, before thecertificate is issued ( as well as those passed or made afterwards).5 The Gender Recognition Act 2004 - Guidance for Police Officers and Staff

(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.Once a GRC has been issued, if the person was born within the UK, the Registrar General will be informed and anentry will be made in the record containing the person's birth or adoption. This will permit UK citizens inpossession of a full GRC to apply for a new birth certificate should they wish. There are certain occasions where itis necessary to confirm the change in a person’s gender by the production of a new birth certificate. These arechanges to PNC (recommended for Force IT systems) and pension entitlements.The issuing of a GRC has implications for the police around ‘gender specific offences’.Section 20 - Gender - specific offences(1) Where (apart from this Subsection) a relevant gender-specific offence could be committed or attempted onlyif the gender of a person to whom a full gender recognition certificate has been issued were not the acquiredgender, the fact that the person's gender has become the acquired gender does not prevent the offence beingcommitted or attempted.(2) An offence is a 'relevant gender-specific offence' if -(a) either or both conditions in Subsection (3) are satisfied, and(b) the commission of the offence involves the accused engaging in sexual activity.(3) The conditions are-(a) that the offence may be committed only by a person of a particular gender, a(b) that the offence may be committed only on, or in a relation to, a person of a particular gender,and the references to a particular gender include a gender identified by reference to the gender of the otherperson involved.Sexual Offences Act 2003 Section 1 - Rape of a woman 16 years of age or overThis is an offence that can only be committed by a man on a woman as it specifies ‘of a woman with your penis’as part of the offence.Where an offender was a female at birth, but has since been legally acknowledged as a man by the applicationand grant of a Gender Recognition Certificate, he will have acquired the male gender at the time of the offence.In this case he is quite capable of committing the offence of rape (subject to all other considerations) and theoffence will still be complete as per Section 3(a) above.Conversely, if a victim was a male at birth but had acquired the female gender at the time of the offence, andis raped by a male, then the offence is similarly made out as per Section 3(b) above.It also follows that if a male rapes a woman and later the victim or the offender applies for and is granted aGender Recognition Certificate changing their gender, the original rape is committed based on the gender atthe time of the offence.Section 22 - Prohibition on disclosure of information(1) It is an offence for a person who has acquired protected information in an official capacity to disclose theinformation to any other person.The Gender Recognition Act 2004 - Guidance for Police Officers and Staff6

(2) 'Protected information' means information which relates to a person who has made an application underSection 1(1) and which-(a) concerns that application or any application by the person under Subsection 5(2) or 6(1), or(b) if the application under Subsection 1(1) is granted, otherwise concerns the person's gender before itbecomes the acquired gender.(3) A person acquires protected information in an official capacity if the person acquires it-(a) in connection with the person's functions as a member of the civil service, a constable or the holder of anyother public office or in connection with the functions of a local or public authority or of a voluntaryorganisation,(b) as an employer, or prospective employer, of the person to whom the information relates or as a personemployed by such an employer or prospective employer, or(c) in the course of, or otherwise in connection with, the conduct of business or the supply of professionalservices.(4) But it is not an offence under this section to disclose protected information relating to a person if-(a) the information does not enable the person to be identified,(b) the person has agreed to the disclosure of the information,(c) the information is protected information by virtue of Subsection 2(b) and the person by whom thedisclosure is made does not know or believe that a full gender recognition certificate has been issued,(d) the disclosure is in accordance with an order of the court or tribunal,(e) the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before acourt or tribunal,(f) the disclosure is for the purpose of preventing or investigating crime,(8) A person guilty of an offence under this Section is liable on summary conviction to a fine not exceeding level5 on the standard scale.Guidance on disclosureSection 22 of the GRA 2004 creates an offence for an individual who has acquired ‘protected information’ (i.e.information relating to a person who has made an application under the Act) in their official capacity (includingas a police officer or police staff) if they disclose this to any other person. It is not an offence under this Sectionto disclose protected information relating to a person who has appliced for a GRC if, among other reasons, thedisclosure is for:(e) .... the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal.(f) .... the purpose of preventing or investigating crime.It is vital, therefore, that gender change information is handled sensitively and professionally, and is notcommunicated to any person inappropriately, where the purpose of the disclosure is not in accord with thelegislation above. This will be particularly important where communication is made over airwaves or otherinsecure method, or where printouts are used.PNC AND GENDER REASSIGNED MARKERThe GRA 2004 allows a person to apply for a GRC, which has the effect of lawfully changing the person’s sex. Therecording of a person’s sex is a standard entry on most police nominal systems. The Police National Computer (PNC)7 The Gender Recognition Act 2004 - Guidance for Police Officers and Staff

is one (but by no means the only) such system. Section 22 will have an impact on the way we use PNC due to thenature of information held and how it is passed to, and between, police officers and staff.The following national guidelines will be implemented from 1st April 2005.If at any point during detention the detainee informs the police that they are in possession of a new birthcertificate then, subject to documentary confirmation, the National Intelligence Service (NIS) must be contacted byway of fax with the following information - Full Name, Date of Birth, Change of Sex, CRO No/PNCID Number andconfirmation that the subject has produced a GRC to show their change of sex. NIS has the responsibility forupdating the PNC records to reflect the gender change.NIS will then undertake to:1. Add a Gender Reassigned (GR) Information Marker (once PNC functionality has been changed). In themeantime they will enter the words Gender Re-assigned on the OD page.2. Change the sex marker as required.3. Change the file name to reflect the person’s new name.4. Record their former filename as an Alias Name.The GR marker is simply to indicate why the PNC subject might have a different entry in a different male or femalename. The new name/sex will become the main record and the previous name/sex will become the alias, therefore,creating the link between the two records. The notifying force will be shown as the ‘owner’ of the information.All original associated records such as fingerprints, court records etc. will remain in the persons original name. Allnew records will be in the persons new name.If a person with a criminal record voluntarily attends a police station to notify the police of a change of gender,and they supply the necessary documentation (a new birth certificate), their PNC record will be updated bynotification to NIS in exactly the same way as an arrested person.CHANGE OF IDENTITYThere is no legal obligation on any person in possession of a GRC and a new birth certificate to inform the policethat they have changed their name or gender. It is, therefore, quite possible that an arrested person could bereleased or otherwise dealt with before any link to their previous offending history is known (throughconfirmation by fingerprints).This situation may arise currently whenever a person uses a false or assumed name. Recent legislation does allowfor fingerprints and DNA to be taken after arrest and before charge for any offence. If there is any doubt overthe identity of an arrested person forces are encouraged to take and check fingerprints at the earliest opportunity.DETENTION AND SEARCHINGThe relevant legislation regarding both detention and searching iscontained within the Codes of Practice issued under the Police andCriminal Evidence Act 1984 (PACE) and, more recently the HumanRights Act 1988, Article 8 – Right to Family and Private Life.The Gender Recognition Act 2004 - Guidance for Police Officers and Staff8

NOTE:◆◆◆◆A failure to comply with any provision of the Codes may make a police officer or member of police staffliable to disciplinary proceedings.The Act also stipulates that persons other than police officers who investigate offences (e.g. store detective)or charge offenders must have regard to the Codes.However, a breach of the Codes by a police officer or any other such person will not, of itself, render himor her liable to any criminal or civil proceedings.Evidence obtained in breach of the Codes may be held inadmissible in any subsequent court case.◆ Some aspects of the law in relation to the searching and detention of trans persons are capable of differentinterpretations. ACPO is committed to applying the statutory provisions in a way that is fair and respectsthe individual's dignity.A number of forces have developed ‘good practice’ in this area. This guidance is promulgated as best practicebased on those policies.DetentionIf there is any question over the detained person’s gender you should ask the individual in which gender they wishto be addressed. A person who is 'en femme' may be comfortable with their male birth gender and wish to betreated as such. They may want to be addressed and dealt with as a female as that is the gender they identifywith. Never assume sex or gender identity, each trans person will be unique in how they want to be treated. Ifasked sensitively you will not offend and you can simplify the process.There will be some individuals that will not be confident enough to declare their transgenderism to the police.This could lead to a situation where the individual is being dealt with in a way that makes the whole interactionuncomfortable, even traumatic, for them. If you suspect transgenderism treat the detained person with sensitivity,but do not force the issue.It must be considered that many transvestites are not ‘out’ within their family or work environment. They mayleave one venue wearing one type of clothing and arrive at another wearing something different. Dressing as afemale en-route to a venue and changing on the return journey is common and could lead to police attention.Arrest and the fear of exposure could be traumatic for those individuals. Everything should be done to ensure thatwe do not expose their cross-dressing to others. Some transvestites, on advice from support groups such as TheBeaumont Society, will disclose their identity immediately when questioned by the police. They should be offeredwashing facilities and a change of clothing if they do not have access to their own, before being interviewed orreleased from custody. This will allow them to retain their dignity whilst in our custody and protect them onrelease.A 'custody record' must be opened for all arrested persons in police detention. All information relating to thedetention must be recorded as soon as practicable in this record. Although not specifically included in the Code,it is recommended that any decision reached regarding a detained person's gender should be fully recorded andexplained in the custody record. The decision should be communicated as soon as practicable to the detainee, whoshould be invited to sign the record to indicate his/her agreement or disagreement.While in custody a detained person may be placed in a cell or other secure room. The Code stipulates that so faras practicable, not more than one person shall be detained in each cell. Because of the potential vulnerability oftrans persons, it is recommended that such persons should be detained in a cell on their own.9 The Gender Recognition Act 2004 - Guidance for Police Officers and Staff

SearchingCode of Practice A to PACE governs the exercise by police officers of their statutory powers to stop and searchsomeone, without first arresting that person.Paragraph 3.1 states:'All stops and searches must be carried out with courtesy, consideration and respect for the person concerned. Thishas a significant impact on public confidence in the police. Every reasonable effort must be made to minimise theembarrassment that a person being searched may experience.’Paragraph 3.6 states:'Any search involving the removal of other than an outer coat, jacket, gloves, headgear or footwear, or any otheritem concealing identity, may only be made by an officer of the same sex as the person searched and may not bemade in the presence of anyone of the opposite sex unless the person being searched specifically requestsit.’The application of PACE - Code A and The Human Rights Act 1998 (HRA) - Article 8, in their application to transpeople can cause some confusion and it is helpful to set out good practice for police staff. Remember that theHRA is likely to take precedence over PACE in any subsequent inquiry into why something was done in a particularway.Where a male to female (MTF, but exactly the same issues arise for FTM) transgender person asks to be searchedby a female officer (or male in the case of FTM), then, depending upon where they are in the transitional process,the legal position regarding a person's biological sex at birth may create a technical infringement of paragraph3.6.However, if this is the specific request of the person being searched, and the decision is fully documented, underHRA, Article 8 (right to respect for private and family life) the detainee will be exercising that right. Such a searchwill comply with paragraph 3.1 above by reducing any embarrassment to a minimum. It is an absolute requirementthat the custody record reflects all the actions taken by custody staff to comply with the detainee's requests.If a person of the requested gender to conduct the search is not available, or is available but is not comfortablewith the search, and there is no other member of staff of the requested gender available to conduct the search,this must be fully recorded on the custody record.Particular sensitivity is required when searching someone who is in the 'transitional phase' of gender assignment.At this time they will be presenting in their preferred gender and they will feel that they are a person of thatgender. They will still have the genitalia of their birth sex. For such a person being searched by an officer of thesame birth sex can be extremely traumatic. In this case the views of all parties to the search should be fully takeninto account before reaching any decision on who should conduct the search.Where a detainee has been granted a GRC they must, in every respect, be treated as a person of the new acquiredsex recognised by the gender recognition panel. To do otherwise would be unlawful. For some people inpossession of a GRC, for medical reasons, gender reassignment surgery is not an option. Even through they arelegally classed as a person of their acquired gender they may still have the genitalia of their birth sex.Strip and Intimate SearchesIn certain prescribed circumstances a person in detention may be subject to further intrusive searches. Annex A toCode C relates to 'strip' and 'intimate' searches.The Gender Recognition Act 2004 - Guidance for Police Officers and Staff10

A 'strip' search is a search involving the removal of more than outer clothing. In this Code, outer clothing includesshoes and socks. A strip search may take place only if it is considered necessary to remove an article that a detaineewould not be allowed to keep, and the officer reasonably considers the detainee might have concealed such anarticle. Strip searches shall not be routinely carried out if there is no reason to consider that articles are concealed.Paragraph 11 states:When strip searches are conducted:(a) a police officer carrying out a strip search must be the same sex as the detainee;(b) the search shall take place in an area where the detainee cannot be seen by anyone who does not need to bepresent, nor by a member of the opposite sex except an appropriate adult who has been specifically requestedby the detainee;(c)........(d) the search shall be conducted with proper regard to the sensitivity and vulnerability of the detainee in thesecircumstances and every reasonable effort shall be made to secure the detainee's co-operation and minimiseembarrassment.In these situations if it is possible to accommodate the detainee's request to be searched by an officer of theirchoice this should be done. This will minimise embarrassment to the detainee and will demonstrate regard to theirsensitivity and vulnerability.Equally an officer or member of police staff must not be compelled to complete a search that they are notcomfortable with if requested to search a trans person.An 'intimate' search under PACE consists of the physical examination of a person's body orifices other than themouth.Intimate searches of persons arrested and in police detention may be authorised by an officer of inspector rank orabove. The authorising officer ‘must have reasonable grounds for believing that such persons may have concealedon themselves either anything which they could and might use to cause physical injury to themselves or others atthe station or a Class A drug which they intend to supply to another or to export and an intimate search is the onlymeans of removing those items’.Code C, Annex A, paragraph 6, stipulates that where an intimate search for an article, which could be used to causeinjury, is carried out by a police officer, the officer must be of the same sex as the detainee. A minimum of twopeople other than the detainee must be present during the search. Subject to one exception (relating to juvenilesor mentally disordered/vulnerable persons) no person of the opposite sex, who is not a medical practitioner or anurse, shall be present, nor shall anyone whose presence is unnecessary. The search shall be conducted with properregard to the sensitivity and vulnerability of the detainee.Where a detainee has been granted a GRC they should be dealt with as a person of their acquired sex.Where a transgender person has not been granted a GRC but they are in a period of transition leading to anapplication for a GRC, unless it is urgent, it is recommended that a medical practitioner should be called to conductan intimate search. If urgent and the detainee has expressed a view on who they would be more comfortable withsearching them then we should attempt to comply with their wishes on the grounds of respecting the sensitivityand vulnerability of the detainee and minimising embarrassment. All decisions made and the reasons for makingthem should be fully recorded and explained in the custody record. The signed consent of the detainee to supportthe decisions made must be included in the custody record.11 The Gender Recognition Act 2004 - Guidance for Police Officers and Staff

Custody staff should be mindful of what medical treatment the person is undergoing. Pre-operative transgenderpeople may well be on medication and receiving counselling. This could have an impact on their mental state ofmind. Anyone who is recently post-operative will also have medical requirements and these should be taken intoconsideration, if being detained.TRANS VICTIMS AND WITNESSESAs with trans employees, alleged trans victims and potential witnesses will need to be treated with the samerespect for their privacy whether or not they have a GRC. If they do have such a Certificate, any leakage of suchinformation could result in a criminal prosecution. A tactful, sensitive approach to the use of titles and names isrequired, especially if a court appearance is likely. If a change of name and /or gender status has occurred since anyalleged incident, the implications will need to be addressed with the CPS and possibly with Witness Support. If itappears that it will be necessary to make such disclosure of sensitive information to lawyers and court staff, it isadvised that the extent of this disclosure be negotiated and agreed with the trans person and that, where a GRCis held, written consent is given. No unnecessary or irrelevant information must be disclosed. Any records,involving GRCs held by trans individuals, which could give rise to 'outing' them, must be properly secured and notunnecessarily shared with other personnel. The usual courtesy of facilitating the use of appropriate toilets, willneed to be extended from the police station precincts, to the court concourse.EMPLOYMENT OF TRANSGENDER STAFFAll staff, volunteers, applicants and members of the public have the right to be treated with fairness, dignity andrespect to ensure that the working environment is fair and supportive to individual needs.The Protective Legislation relating to trans employees is the Sex Discrimination Act (Gender ReassignmentRegulations) 1999. These regulations clarify UK domestic law relating to gender reassignment and preventdiscrimination against trans people on the grounds of sex in pay, treatment in employment and vocationaltraining. The effect of the regulations is to insert a provision that extends the Sex Discrimination Act 1975 (SDA1975) to include individuals who intend to, or have undergone, gender reassignment. Employers/employees whobreach the SDA 1975 in respect of discrimination on gender reassignment grounds will be liable in the samemanner as they would, for example, for discrimination against a woman on the grounds of her sex.The individual is protected by the SDA from the time they indicate that they intend to undergo genderreassignment. As well as protecting individuals from discrimination in recruitment and employment, harassmentof an individual on the grounds of gender reassignment, either by his or her employer or by fellow employees, willgive rise to unlawful discrimination and potential criminal offences.The Regulations are used to clarify UK law relating to gender reassignment and reflect a ruling by the EuropeanCourt of Justice, which effectively established that any form of discrimination against an employee undergoinggender reassignment is contrary to the European Equal Treatment Directive. The UK and all member states areobliged to implement such European law. The law gives protection to individuals at all stages of the genderreassignment process.The law in respect of less favourable treatment of a person prohibits discrimination on the grounds that she/he'intends to undergo, is undergoing or has undergone reassignment'. To fall within the regulations an employeewould need more than just a wish to change gender. He or she must actually intend to commence the process ofchange under medical supervision. This would also cover those who are undergoing medical and/or psychiatricand/or psychological evaluation prior to any treatment being given.The Gender Recognition Act 2004 - Guidance for Police Officers and Staff12

HARASSMENT/VICTIMISATIONHarassment of an individual on the ground of gender reassignment - either by his or her employers or by fellowemployees - will be seen as unlawful discrimination.The regulations make it unlawful to victimise a person on the grounds of their gender reassignment in just sameway, as it would be to victimise them as a result of their race or sex. It is equally unlawful to victimise someonewho gives evidence on behalf of a person who has complained.LEGAL STATUS OF TRANS MEMBERS OF STAFFThe Gender Recognition Act 2004 will, as of April 2005, allow individuals to legally apply for a GRC and, as aconsequence, legally change their sex. They will be able to permanently alter their employment records to reflecttheir new acquired gender. Staff must be aware of the prohibition of disclosure as discussed above when disclosingsuch information. Each individual is entitled to their privacy and this must be respected.The Human Rights 1998, Article 8 - right to respect for private and family life, and Article 10 - freedom ofexpression, are also highly relevant in this respect.Whilst the searching of a detained person is explained earlier there are potential operational implications for atrans member of staff which should be seen in the light of ‘is the member of staff in possession of a GRC?’Where an officer or member of police staff has been granted a GRC they should be identified as a person of theiracquired sex. Accordingly they should be able to search a detainee of that same sex without any reference beingmade to the fact that they have acquired a new sex. Indeed any such reference would be a breach of Section 22,GRA 2004Under PACE it is not the norm for a search to be conducted on any person by a person of the opposite sex. Beforethe gender is changed through the grant of a GRC, a persons gender is identified and fixed as being that declaredon their original birth certificate (as stated by PACE). Therefore, any trans member of staff who is living in theirpreferred gender (say for example a male living as a female) but without a GRC, they will not be able to search aperson of that gender (female). Each force will need to assess their own policy and decide how they will deal withsuch a situation. It must be remembered that any action may result in the status of the trans person beingidentified and, therefore, must be carefully considered.Individuals should always be addressed in the terms in which they identify and present themselves. An individualwho presents and identifies as a male should be referred to as 'Mr' or he, and a person who presents and identifiesas a female should be referred to as 'Miss, Ms, Mrs' or she.PERSONAL RECORDS AND REFERENCESForms used for security checks and medical screening will seek information that could lead to identification oftransgender status. This information will remain 'confidential' and the disclosure of this information will berestricted to those personnel closely involved who will be expected to honour that confidentiality. Section 22 ofthe GRA 2004 creates a criminal offence if this information was inappropriately disclosed.Individuals in possession a new birth certificate will be entitled to a full update of their personnel records to reflecttheir new sex.Everyone, male and female, born after April 1955 will be entitled to their state pension at 65. Women born before1950 can claim a state pension at 60 and those born between 1950 and 1955 can claim it at a point between 6013 The Gender Recognition Act 2004 - Guidance for Police Officers and Staff

and 65. Trans persons who acquire a new birth certificate will be treated in the same way as every other personof that acquired sex. Those who do not apply for a new birth certificate will be treated as their birth sex and may,therefore, have an apparently late or early retirement. It is the responsibility of the employer to take suitable stepsto maintain confidentiality as to the reasons behind this.It should be remembered that matters relating to trans staff must be handled sensitively. Personal informationmust be treated with confidentiality and with due regard to the Data Protection Act as well as the GRA 2004.TIME ALLOWED FOR MEDICAL TRANSITIONThe Sex Discrimination Act (Gender Reassignment) Regulations 1999 do not specify a minimum or maximum timeemployers should allow a person undergoing medical and/or surgical treatment related to the process of theirgender reassignment. However, an employer must not treat any less favourably a person absent while undergoinggender reassignment than they would treat a person absent due to illness or to some other cause (e.g. prolongedabsence to nurse a relative).USE OF SINGLE SEX FACILITIESThe employer and employee should agree the point at which the use of facilities such as changing rooms andtoilets should change from one sex to another. An appropriate point for a change in use of the facilities to thoseof the employee's 'new' sex may, for example, be the point at which the individual begins to present permanentlyin the sex to which they identify.It is not acceptable to insist, for the long term, on a transgendered employee using separate facilities, for examplea disabled toilet. Such long term use could be seen as a breach of the Sex Discrimination Act (Gender ReassignmentRegulations) 1999. Other staff may express concerns but that will not justify, in law, discriminatory treatment.Trans employees are entitled to expect support from their employer including any necessary discussions andexplanations with other members of the workforce or members of the public.Similarly, a trans employee should be granted access to 'men only' or 'women only' areas according to the sexwhich they permanently present. Extra care and sensitivity needs to be taken in the case of FTM employees whowill not be able to use urinals.MEMORANDUM OF UNDERSTANDING WITH TRANSITIONING INDIVIDUALSAll agreements arising from the initial meetings with an individual intending to transition should be drawn up intoa written ‘Memorandum of Understanding’. This will not only cover time off for medical treatment and use ofsingle sex facilities but also: form of address, timings of the transition process, communication with and trainingfor colleagues and other staff, dealing with the press, revised duties and uniform change, warrant card/ID, searchexemption certificate, liaison with CPS in respect of current cases and confidentiality of personal information,including the location of copies and who should have access. The transsexual member of staff and their ServiceUnit Manager should sign this document. It should then be reviewed at least every three months, but should alsobe reassessed at each significant stage of the process.The Gender Recognition Act 2004 - Guidance for Police Officers and Staff14

ANNEX 1 - A GUIDE TO APPLYING FOR GENDER RECOGNITION AS LAID DOWN IN THEGENDER RECOGNITION ACT 200415 The Gender Recognition Act 2004 - Guidance for Police Officers and Staff

ANNEX 2 - SOURCES OF ADVICE AND INFORMATIONThis is by no means a comprehensive list of organisations, but may be a helpful starting point when trying to findinformation and help on transgender issues.CLARE PROJECT0870 225 6401Website www.clareproject.org.ukAccess to experienced gender counsellingDEPENDBM Depend, London, WC1N 3XXEmail- info@depend.org.ukWebsite www.depend.org.ukOffers support for all family membersFTM LONDONBCM FTM London, WC1n 3XXEmail- info@ftmlondon.org.ukWebsite www.ftmlondon.org.ukFTM NETWORK0161 432 1915 (Wed 2000-2230hrs)FTM Network, BM Network, London WC1N 3XXwebsite www.ftm.org.ukGENDER RECOGNITION PANEL0845 355 5155P.O. Box 6987, Leicester, LE1 6ZXWebsite www.dca.gov.uk/constitution/transsexGENDER TRUST01273 234024Persia WestPO Box 3192, Brighton, BN1 3WRWebsite www.gendertrust.org.ukEmail: info@gendertrust.ork.uk(Persia also runs Gender Diversity Training Days)GENDY'SBM Gendy's, London WC1N 3XXGERRY SMALL07940 706413e-mail GerryS@lgbtag.orgFTM CommunityThe Gender Recognition Act 2004 - Guidance for Police Officers and Staff16

GIRES (GENDER IDENTITY RESEARCH and EDUCATION SOCIETY)01372 801554Melverley, The Warren, Ashtead, Surrey, KT21 2SPwebsite www.gires.org.ukLANCASHIRE HEAL (HEALTH EDUCATION AIDS LIAISON)0845 6000184 OR 01695 720044West Lancashire H.E.A.L., OFFICE 3, Ecumenical Centre, Firbeck, Northway, Skelmersdale, Lancashire, WN8 6PNWebsite www.lancashireheal.co.ukMERMAIDS/MERMENHelpline 07020 935 066 (1200-2100hrs)Mermaids, BM Mermaids, London, WC1N 3XXEmail- Mermaids@freeuk.comWebsite www.mermaids.freeuk.coFor children and teenagers and their familiesMIND OUT01273 73984779 Buckingham Road, Brighton, BN1 3RENORTHERN CONCORDP.O. Box 258, Manchester, M60 1LNWebsite www.northernconcord.org.ukPRESS FOR CHANGEBM Network, London, WC1N 3XXWebsite www.pfc.org.uk(Not a support group but a political lobbying and educational organisation)THE BEAUMONT SOCIETY24 Hour Information Line 0158 41222027 Old Gloucester Street, London WC1N 3XXWebsite www.beaumontsociety.org.ukTHE BEAUMONT TRUSTHelpline 07000 287878 (Tue/Thu 1900-2300hrs)Beaumont Trust, BM Charity, London WC1N 3XXWebsite www.members.aol.co./BmonttrustTHE GENDER TRUSTHelpline 07000 790 347 Office 01273 234024P.O. Box 3192, Brighton, BN1 3WRwww.gendertrust.org.ukTHE RUBICON SOCIETYHelpline 020 8252 2623 of 07891 613367London – provides national advice(provides help, advice and support for those with gender dysphoria and their families)17 The Gender Recognition Act 2004 - Guidance for Police Officers and Staff

THE RUBICON TRAINING AND DEVELOPMENT020 8252 2623 OR 07891 613367(provides training, policy and management consultation to companies, statutory and voluntary organisations, toenable safe transition for employees/volunteers already within organisations and those who wish to proactivelyrecruit people undergoing or having undergone transition/gender reassignment)THE WOMEN OF THE BEAUMONT SOCIETY (WOBS)Helpline - 01223 441246 (1930-2230hrs)BM WOBS, London WC1N 3XXTRANS-ACTION0115 958 7408Nottingham regionTRANSGENDER- UK0151 709 1432 (24 hour answerphone)TRANSGENDER- UK, 136 Bedford Street South, Liverpool L7 7DBWebsite www.transgender-uk.infoTRANSLIVINGTransliving, P.O. Box 3, Basildon, Essex SS14 1PTWESTERN BOYSHelpline (answerphone service) 07811 814302Website www.westernboys.co.ukcovers the south-west regionThe Gender Recognition Act 2004 - Guidance for Police Officers and Staff18

ANNEX 3 - EXPERIENCES OF TRANS PEOPLE WITH THE POLICENot all experiences are bad!'I have only ever had minor dealings with the police and theywere excellent'Manchester'Never had any problems with me being out dressed, alwaysfound them very easy to talk to'Manchester'Got stopped and the policeman was OK, he checked the vehicleon me, as if I would nick a car in a dress'South Yorkshire'The police have been very good when I've had dealings with them. On one occasion though the officer was a littleembarrassed when I gave him my driving documents in male name and I was dressed as a female. He clearly didn'tknow what to say other than that's OK you can go'West Yorkshire19 The Gender Recognition Act 2004 - Guidance for Police Officers and Staff